“If this [NSA phone surveillance] came up to the Supreme Court with this Supreme Court, they would declare it unconstitutional,” Laura Murphy, director of the ACLU’s Washington legislative office....
....Geoffrey Stone, a University of Chicago law professor who worked at the school with President Barack Obama, said the ACLU’s position is “reasonable,” but he doesn’t see the court issuing a ruling that shuts down the phone surveillance program....
...And based strictly on existing Supreme Court case law, says George Washington University law professor Orin Kerr, the group’s arguments are “weak.”And this time around, says Kerr, “the ACLU’s goal is probably to get discovery” — to force the government to declassify more information about the programs — “not to win.”....
....But even skeptics of the ACLU’s chances concede the potential for progress. Edward Snowden’s leaks to The Guardian and The Washington Post may not lead to a wholesale dismantling of the NSA’s dragnet surveillance efforts — but the revelations could force the high court to reevaluate its interpretations of privacy law.....
....Freedom Watch, a group led by former Justice Department official Larry Klayman, has filed two class action suits: one over phone surveillance and a second over PRISM, the NSA’s system of surveillance of the Internet activities of non-U.S. citizens abroad....
....(Rand) Paul has launched an effort to gather the support of Americans who would potentially want to sign onto a class action suit, and is working with lawyers to determine whether to sign on to the ACLU suit, join another existing suit or launch a new one....
....Filing suit within days of the emergence of new information was “to some degree reflexive” for the ACLU, said Stephen Vladeck, a law professor at American University who successfully challenged the Bush administration’s use of military tribunals at the Guantánamo Bay detention facility. “But I think they’re some of the brightest lawyers around, and they don’t file these things willy nilly,” he added. “It’s pretty clear off the bat what the issues are.”.....
....this case doesn’t face the same hurdles” on those grounds that torpedoed previous suits, [standing] said Patrick Toomey, a national security attorney working on the case for the ACLU....
...And if the courts do move forward, they will in part be looking to the precedent of the Supreme Court’s 1979 ruling in Smith v. Maryland. In that case, Justice Harry Blackmun wrote that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”
With the development of new technology, some justices have begun to voice doubts about that decision. When the court ruled in 2012 that the government could not track a suspect using a GPS device attached to his car without getting a warrant, Justice Sonia Sotomayor wrote in a concurring opinion that the approach established by Smith “is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”...
....The ACLU isn’t the only group to have taken legal action since the revelation of details of the phone-tracking and PRISM programs: Snowden’s leaks have translated into renewed support for legal efforts across the political spectrum.
Freedom Watch, a group led by former Justice Department official Larry Klayman, has filed two class action suits: one over phone surveillance and a second over PRISM, the NSA’s system of surveillance of the Internet activities of non-U.S. citizens abroad....
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Experts: NSA lawsuit could break new legal ground - Jennifer Epstein - POLITICO.com
